Illiberal Democracy as Constitutional Identity

It is beyond the scope of this chapter to discuss anti-democratic political and legal developments in more detail than the previous subchapter. Suffice it to conclude that most of the criticism pertained not so much to restrictions on individual freedoms and liberties, but rather to the systematic weakening of institutional rule of law guarantees advanced by the meta-institutional practice of cementing government loyalists in most independent constitutional offices. However, as far as strictly normative, grand scale institutional engineering goes, there is no official, authentic (constitutionally declared), sui generis Hungarian illiberal design at play here. In fact, the Orban regime’s constitutional framework does not go directly against the principles of liberal democracies. This constitutional order is built up from elements that are mostly not in clear breach of international human rights standards, nor are individual elements unprecedented in well-functioning constitutional democracies. However, the grand picture emerging from the sum of these individual pieces of the mosaic is one of a constitutional design in which institutional checks and balances are dismantled, the protection of human rights is severely weakened, and political freedom is curtailed (Scheppele 2013).

Also, although the populist rhetoric (of the NSC) aims at targeting and attracting both moderate and far-right voters, the NSC is not inherently and intrinsically racist, misogynist, anti-Semitic, or homophobic. It does, however, neglect and deny the discursive recognition, questions the importance, relevance, and legitimacy of liberal values and fails to adopt an individual freedom and human rights oriented approach that would, for example endorse Roma inclusion, feminism and multiculturalism, postnationalism, individualism, or a particular vision of modernism - ideals and commitments Hungarian liberal public intellectuals would advocate.4 In other words, the discourse is not inherently anti-liberal, only a-liberal. Again, let us torn to the seminal Orban-speech cited above:

the Hungarian nation is not simply a group of individuals but a community that must be organised, reinforced and in fact constructed. And... the new state that we are constructing in Hungary is an illiberal state, a non-liberal state. It does not reject the fundamental principles of liberalism such as freedom, and I could list a few more, but it does not make this ideology the central element of state organisation, but instead includes a different, special, national approach.

As Orban pointed out in his above cited 2014 Balvanyos-speech regarding illiberalism and the NSC, “This cannot be entered into law, we are talking about an intellectual starting point now.” Thus, it is argued in this chapter that illiberalism in Hungary goes beyond political and legal action. It is a form of ideology and a discursive construct. Even though “unorthodox” legal and political institutions are instrumental for the establishment, solidification and cementing of the Orban-regime, they are only byproducts. The real product is the (conceptual framework of the) newly established political community. Illiberal democracy and the NSC serve as tools for constitutional identity and an ideological framework for institutionalizing the well-documented process of anti-democratic backlash in Hungary.

This chapter argues that it would be a mistake to identify the Hungarian illiberal democracy model with these constitutional and legal developments. Instead, an alternative, non-institution focused analysis is offered. “Hungarian illiberal democracy” is neither a construct of constitutional philosophy nor is it a principle for constitutional design. It cannot be properly described by the evisceration of classic democratic institutions, and it is also not characteristically illiberal within the interpretative framework of political theory. It would equally not qualify as a sui generis un-republican (Niederberger and Schink 2013; Pettit 2013), un-participatory (Garcia 2015), un-agonistic (Wenman 2013), or un-deliberative model (Mansbridge and Parkinson 2012). Despite the political mantra used by Orban’s party of the legitimating force of a parliamentary supermajority being based on a single event of popular vote, the Hungarian model of illiberal democracy cannot be equated with the unfettered freedom of a parliamentary majority to do as it pleases. Rather, it is a tool to channel, define and dominate general political discourse and to provide a discursive framework for political identification and ideologically biased yet divergent and ad hoc legislation.

This chapter argues that “illiberal democracy” and “illiberalism” in Hungary are actually forms of constitutional identity guiding the discursive framework of this new political community. Illiberalism is thus the culmination of government discourse along with the discursive framework of the new political community, which in turn reframes politics in terms of nationhood. It is the form and means to construe and express the new and novel (constitutional) identity, which emphasizes cultural particularism and values such as fidelity, faith, and charity as opposed to universal values of equality, human rights, and social inclusion. This creates official historical narratives, but disregards individual autonomy and projects a paternalistic conception of society in which value preferences are not centered around liberty and autonomy. Orban’s illiberal democracy instrumentalizes a special form of nationalism that is built on the uniqueness of the Hungarian “people,” where illiberalism is a form of ethno symbolism.5 Here, the myth of election of the new political community via the NSC is constituted through independence from modernist universalist values, which only brought failure and frustration. This framework for constitutional identity politics centers around the rejection of the liberal political ideology that places individual freedom front and center.

As shown, the morphosis of this Hungarian model for illiberal democracy manifests itself normatively through value preferences expressed in the new constitution, the Fundamental Law, as well as in a quasi-normative political declaration that serves as a manifesto for not only Orban’s new political regime, but also the new political community he and his regime envisages. It is important to highlight that, contrary to what it claims to be, the NSC is not an actual institutionalized modus operandi for the Hungarian illiberal democracy, nor is it a form of political institutional design. It is rather the manifesto of illiberal democracy: the political and quasi-normative declaration of the Orban-regime’s discursive framework.

In sum, the quintessential feature of the Hungarian illiberal democracy is that it is the discursive framework through which the Orban- government constructed a new national and constitutional identity. It is a form of a constitutional commoditization aimed at selling a political regime, where a significant emphasis is put on authenticity and difference. Thus, illiberalism is not so much a constitutional term describing and legitimizing an overall backlash in democratic control mechanisms and the protection of human rights as it is a discursive framework constructed to describe and mark6 the new imagined community of the NSC-Hungarian nation and to narrate its shared common belonging.7 To paraphrase Thierry Balzacq’s securitization theory, one may argue that the Hungarian illiberalization process is a perlocutionary constitutional speech act,8 in which the consequential effects or sequels are aimed to evoke the feelings, beliefs, thought, or actions of the target audience.9 “Illiberalism” is a mobilizing tactic utilized to question the validity and sustainability of post the WWII (liberal) consensus on human rights centered political language, disenchantment, certain sacred democratic institutions, and neoliberal policies. The term (which is not a coherent concept) can be operationalized by neoconservative movements as an anti-modernist and fundamentalist10

answer to the neoliberal consensus, similarly, for example, to the ways in which “(anti) gender ideology” is used. As Kovats et al. argue, “gender” has been identified as the common ground, a label amidst diverse political cultures, different party structures and a variety of mobilizing tactics, compressing different fears and values and used against diverse causes (Kovats and Poim 2015; Kovats et al. 2015). Orban’s illiberalism is also very similar to how Hobsbawm (1992) sees nationalism in the twenty- first century - as a substitute, a placebo for disorientation, and a surrogate for integration in a disintegrating society; when society fails, the nation appears as an ultimate guarantee (and in post-communist societies, also as a device to distinguish between the innocent and the guilty). In the Hungarian case, the strategy worked. As Peto and Vasali (2014) point out, the government successfully built a state-funded (pseudo) NGO sector and this, alongside racist and nationalist movements (Feischmidt and Hervik 2015; Wodak et al. 2013; Vidra and Fox 2014), convincingly offered anti-modernism (Kovacs et al. 2011), and anti-cosmopolitanism/ Europeanism (Melegh 2006) as a viable alternative to neo-liberal democracy and the market economy (Peto and Vasali 2014).